is void, and plaintiff's title thereunder, and, consequently, his cause of action in this case must fail. Counsel do not cite us a case wherein the power of the corporation to confess a judgment is denied. We do not know, and are not informed by the record what were the powers of the Old Dominion Copper Mining Company. It was a corporation organized under the laws of the state of New York, whether by special charter or under general incorporation laws does not appear. That it is a private corporation fairly appears, for it is hardly conceivable that a public corporation, organized under the laws of New York, should be engaged in business in Arizona. It is admitted by the demurrer that it was engaged in transacting business in Arizona, necessarily, then, entering into contracts.

A domestic private corporation has the power to sue, is liable to be sued, and may appear in court and defend when it is sued; may, we suppose, of course,' suffer default and judgment hereby; and we see no reason, in absence of proof to the contrary, to presume that the same attributes do not attach to a foreign private corporation. There are attributes so universally incident to private corporations in modern. times that it would be totally at variance with the probabilities to presume otherwise. Indeed, it is said by the text writers that it is neces-sarily implied that a corporation, from the mere fact of its incorporation, may sue and be sued. Field Corp., § 360; Mor. Priv. Corp., § 356. Incident to the right to sue, and the liability to be sued, we think is unquestionably the right to confess judgment. In no case to which our attention has been called has the power of a corporation to confess judgment been doubted or called in question. In 12 How. Pr.

a case cited by appellant, a doubt of such power was not suggested. Black, in his recent work on Judgments, discusses the power of agents of a corporation to confess a judgment, but does not even intimate that to confess a judgment is ultra vires of a corporation. Indeed, while he does not in terms assert that power to exist, yet the inference is necessary from his statement that the corporation is bound by a confession of a judgment by its officer upon whom summons might have been served in a contested action. 1 Black Judgm., § 59; and see Freem. Judgm., § 545. Morawetz lays down the broad rule that the managing agents of a corporation have authority to confess judgment whenever they deem it to be to the interest of the corporation. Mor. Priv. Corp., § 430. In Miller v. Bank of British Columbia, 2 Ore. 291, wherein a judgment by confession against a corporation was under discussion, the question was whether the president had virtute officii the power to confess for his principal; that the confession was ultra vires the corporation was not even suggested. In McMurray v. St. Louis Oil Manufacturing Co., 33 Mo. 377, the questions were as to the power, virtute officii, of the president of a corporation to confess judgment, the sufficiency of the statutory statement required to accompany such confession, and the power of the corporation to create a lien by such a judgment, the statute prohibiting it from mortgaging their property or giving any lien thereon. Joliet, etc., Co. v. Ingalls, 23 Ill. App. 45, a judgment against a cor-

In

poration by confession was under consideration. The question whether the corporation had the power to confess a judgment was not suggested. The matter considered was the authority of the particular officer who did confess the judgment to do so. And so in Stokes v. New Jersey Pottery Co., 46 N. J. Law 237, 6 Am. & Eng. Corp. Cas. 240; Thew v. Porcelain Manufacturing Co., 5 S. C. 415; White v. Crow, 17 Fed. Rep. 98. And in all these cases there was a direct attack upon the judgment, and not a collateral one, as in this case. We do not entertain a doubt of the general right of a private corporation to confess a judgment.

Affirmed.

Note. See Stokes v. New Jersey Pottery Co., 46 N. J. Law 237, 6 A. & E. Corp. Cas. 240, note 246; 1898 Solomon v. C. M. Schneider & Co., 56 Neb. 680, 77 N. W. Rep. 65; 1898, Chicago Tp. & T. Co. v. Chicago Nat'l Bank, 176 Ill. 224.

Sec. 337. What may be taken on execution.

See The Louisville, N. A. & C. Ry. Co. v. Boney, 117 Ind. 501, infra, p. 1842.

ARTICLE VII. RIGHT TO HAVE AND USE A SEAL.

Sec. 338. 1. Necessity of a seal.

(a) At common law.

HORNE v. IVY.

IN THE KING'S BENCH. 20 Car. 2 (1668), I Mod. 18.

Trespass for taking away a ship. The defendant justifies as servant under the patent whereby The Canary Company is incorporated, and whereby it is granted, "That none but such and such should trade thither, on pain of forfeiting their ships and goods," etc., and says, that the defendant [plaintiff] did trade thither, etc. The plaintiff

demurs.

Pollexfen, for the plaintiff, contended that the defendant ought to have shown the deed whereby he was authorized by the company to seize the goods; though he agreed, that for ordinary employments and services a corporation may appoint a servant without deed, as a cook, a butler, etc. A corporation can not license a stranger to fell trees without deed. Nor can they make a disseisor without deed, attorney without deed.

nor deliver a letter of TWISDEN, Justice.

For the first point, I think, they can not seize without deed, no more than they can enter for a condition broken without deed.

See note, 50 Am. St. R., p. 150.

'Part of argument and opinion of Kelynge, C. J., omitted.

See President, etc., of Bank of the United States v. Dandridge, 12 Wheat. (25 U. S.) 64, supra, p. 854.

See notes to following cases.

Sec. 340. Same.

(b) Now generally unnecessary, except where required of a natural person also.

MUSCATINE WATER COMPANY, APPELLEE, V. MUSCATINE LUMBER COMPANY.1

1892. IN THE SUPREME COURT OF IOWA. 85 Iowa Rep. 112-119, 39 Am. St. Rep. 284.

[Action to recover damages for loss of a mill by fire alleged to be due to the failure of the water company to extend its water system to place where water could be had, in accordance with a contract entered into between the lumber and the water company, whereby the latter agreed to so extend its water system. Judgment for plaintiff, and defendant appeals.]

ROBINSON, C. J.

The appellant contends that the contract in suit is invalid for the reason that no seal of either corporation is attached to it. Section 2112 of the code contains the following: "The use of private seals in written contracts, except the seals of corporations, is abolished." It is argued from this that the use of private seals by corporations is governed by the rules of the common law, and that such seals must be affixed to all contracts not covering the scope of the ordinary, every-day functions of the corporations. That is not the law of this state. On the contrary, it was said in Merrick v. Plank Road Co., 11 Iowa 76, that "the doctrine is now well settled that corporations of all kinds may be bound by contracts not under their seal. They may make a binding contract in writing without using the seal, and so they may be held liable on verbal contracts; and as they may make, so they may ratify and adopt as their own, without the use of the seal, that which has been done by another or an officer out of the usual line of his duties." In 1 Morawetz on Private Corporations, section 338, this language is used: "It is now a rule well settled throughout the United States that a corporation may make a contract without the use of a seal in all cases in which this may be done by an individual." A corporation organized under the laws of this state may have a common seal, but it is not required to have one; and it is a matter of common knowledge that corporations in large numbers organize and do business in the state, making contracts and conveying property, without using or having a seal. There is nothing in this case to show any requirement on the 1 Only the part of opinion relating to seal is given.

72-WIL. CAS.

part of either party to the agreement in question that its contracts should be under seal, nor that either had a seal. There is no presumption, in the absence of evidence to that effect, that the agreement was invalid for want of a seal; and no presumption of that kind is raised by anything contained in the record.

Affirmed.

Note. Seal is unnecessary, where not necessary in case of a natural person: 1813, Bank of Col. v. Patterson's Admr., 7 Cr. 299; 1823, Mott v. Hicks, 1 Cow. (N. Y.) 513, 13 Am. Dec. 550; 1825, The Banks v. Poitiaux, 3 Rand (Va.) 136, 15 Am. Dec. 706; 1825, Fitzhugh v. Bank of Shepherdsville, 3 T. B. Mon. (Ky.) 126, 16 Am. Dec. 90; 1829, Barker v. Mechanics, etc.. Co., 3 Wend. (N. Y.) 94, 20 Am. Dec. 664; 1831, Garrison v. Combs, 7 J. J. Marshall (Ky.) 84, 22 Am. Dec. 120; 1837, Everett v. United States, 6 Porter (Ala.) 166, 30 Am. Dec. 584; 1839, Lathrop v. Commercial Bank, 8 Dana (Ky.) 114, 33 Am. Dec. 481; 1840, Commercial Bank v. Newport Co., 1 B. Mon. (Ky.) 13, 35 Am. Dec. 171; 1848, Ross v. City of Madison, 1 Ind. 281, 48 Am. Dec. 361; 1857, Goodwin v. Union Screw Co., 34 N. H. 378; 1862, Topping v. Bickford, 4 Allen 120; 1867, Pixley v. R. Co., 33 Cal. 183; 1867, Sherman v. Fitch, 98 Mass. 59; 1868, Racine, etc., R. Co. v. Farmers' L., etc., Co., 49 Ill. 331, 95 Am. Dec. 595; 1890, Duke v. Markham, 105 N. C. 131, 18 Am. St. R. 889; 1892, Roberts v. Deming Wood Working Co., 111 N. Č. 432; 1895, Sarmiento v. Davis Boat, etc., Co., 105 Mich. 300, 55 Am. St. R. 446; 1895, B. S. Green Co. v. Blodgett, 159 Ill. 169, 50 Am. St. R. 146; 1896, Ford v. Hill, 92 Wis. 188, 53 Am. St. R. 902; 1899, Speirs v. Drop-Forge Co., 174 Mass. 175, 54 N. E. Rep. 497; 1899, State, ex rel. Grimm, v. Manhattan Rubber Co., 149 Mo. 181; 1900, Pullis v. Pullis Bros. Iron Co., 157 Mo. 565, 57 S. W. Rep. 1095. If seal is not present officer's authority must be shown: 1900, Fontana v. Pacific Can. Co., 129 Cal. 51, 61 Pac. Rep. 580.

See note next case. Also, notes 50 Am. St. R. 150, and 64 Am. St. R. 260; 1900, Garland Mfg. Co. v. Northumb. Paper Co., 31 Ont. 40.

Sec. 341. Same.

(c) In deeds conveying land, the corporate seal is required in some states.

GARRETT v. BELMONT LAND COMPANY.1

1895. IN THE SUPREME COURT OF TENNESSEE. 94 Tenn. Rep. 459-485.

[Action of ejectment by Garrett against the land company. Both parties trace title to a common source, but the complainant's title was through a deed in which the "Second National Bank conveys, remises, and releases" and concludes "In testimony whereof, the Second National Bank hath hereunto set its hand, by its president, James McLaughlin, this 13th day," etc. "(Signed) James McLaughlin, pres

ident Second National Bank."

No seal, or any impression of one, though the bank had one, was 1 Statement abridged; only that part of the opinion relating to the necessity of the seal to make a valid conveyance is given.

affixed to the instrument. It was shown that it was not the custom of the bank to seal deeds, or other instruments, except stock certificates. The defendant contends that this deed was insufficient to pass title to complainants. The court below held the deed sufficjent, and this is court_below one of the errors assigned.] WILKES, J. (After stating the facts, and holding with Combe's Case, 9 Co. 75, after an excellent review of the cases, that "When any one has authority as attorney to do any act, he ought to do it in his name who gives the authority; for he appoints the attorney to be in his place and to represent his person; and, therefore, the attorney can not do it in his own name, nor as his proper act, but in the name and as the act of him who gives the authority,"-and hence this was not the deed of the bank, proceeds as to the want of seal as follows:)

Prior to the adoption of the code of 1858, the seal of the grantor was necessary to the validity of any deed made by an individual or a corporation. The use of seals by individuals arose out of necessity, as, in former days, many persons of extensive estates were too illiterate to make their manual signatures. Its adoption and use by corporations, however, arose out of their nature and constitution, being invisible, intangible bodies, composed of an aggregation of individuals, who must speak, at least in weighty matters, through a common seal. It was accordingly held that the affixing of the seal, and that alone, united the several assents of the individuals who composed the corporation, and gave expression to the act as the assent of the whole, and that a corporation could enter into no contract of importance except under seal. The tendency of modern legislation and the trend of more recent decisions is toward the abolition of the strict rules formerly prevailing as to sealed instruments, and in many states statutes have been passed doing away, in whole or in part, with the distinction between sealed and unsealed instruments, and in most of the states the use of the seal is now regulated by statute. There is a difference kept up, however, in many of the states between the use of seals by corporations and by individuals. While it is laid down broadly that corporations may enter into contracts to the same extent as individuals without using a seal, this clearly has reference to other contracts than the conveyance of lands, and none of the cases to which we have been cited hold that the use of a seal is not required in conveyances of land. See Taylor on Corporations, section 248; Morawetz on Corporations (2d ed.), section 338; Waterman on Corporations, sections 89, 90; Mus. W. Co. v. Mus. L. Co., 37 Am. & Eng. Corp. Cases 119; Gottfield v. Miller, 104 U. S. 527; Merrick v. Burlington Plank-Road Co., 11 Iowa 74-76; Cary Holliday Lumber Co. v. Cain et al., 13 So. Rep. 239.

These conveyances did not involve conveyances of real estate, and none of the citations are authority for the proposition that a corporation can execute a deed without using a seal. But we think the contrary is held, more or less directly, in the following, as well as other authorities: Spelling on Private Corporations, section 195; Beach on